Eagle County District Attorney Mark Hurlbert has filed a motion asking a Colorado judge to bar the cyclist victim in a hit-and-run from testifying at a Thursday hearing to review a controversial plea bargain in the case.

A Colorado district attorney has filed a motion asking a judge to bar the cyclist victim in a hit-and-run from testifying at a Thursday hearing to review a controversial plea bargain in the case.

Eagle County District Attorney Mark Hurlbert has asked a court to prevent Steven Milo from testifying in Thurday's hearing.

In July, near Vail, Colorado, New York anesthesiologist Dr. Steven Milo was struck by a car driven by Denver-area wealth fund manager Martin Erzinger, who then left the scene. Milo suffered serious head, spinal and other injuries.

Erzinger was later arrested in the parking lot of an abandoned Pizza Hut while telephoning his car’s manufacturer in an effort to repair the damage to his 2010 Mercedes sedan.

While Erzinger was originally charged with a felony and two misdemeanors, Eagle County District Attorney Mark Hurlbert controversially forwarded a plea agreement that would result in the dropping of the felony charge in exchange for guilty pleas to the misdemeanors, noting that “felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession.”

Milo, represented by Denver attorney Harold Haddon, objected to the agreement, citing Colorado’s Victim Rights Act, which was designed to ensure that “… all victims and witnesses to crimes are honored and protected by law enforcement agencies, prosecutors and judges in a manner no less vigorous than the protection afforded criminal defendants.”

Lacks standing

In a motion filed in Eagle County District Court on Tuesday, Hurlbert argued that while Colorado law guarantees a crime victim’s input at critical stages of a criminal proceeding, the law does not give a victim the legal standing required to intervene in a court hearing.

Hurlbert’s position echoes that outlined in a motion filed in November by Erzinger’s attorney, Richard Tegtmeier.

“Clearly acceptance of a plea disposition is a prerequisite to the right to be heard,” Hurlbert conceded in his filing, but added that the right to offer testimony in a hearing goes beyond the scope of the law.

“To construe the right to be heard in a manner that allows a victim unfettered ability to challenge plea dispositions prior to their acceptance serves to directly limit and substantially qualify the prosecuting attorney’s constitutional role in determining a proper plea disposition,” he noted.

Haddon told VeloNews that he expects to file a response to Hurlbert’s motion to bar Milo’s testimony and that he and his client will both attend the hearing scheduled for 1 p.m. on Thursday.

Haddon said that he wasn’t surprised at Hurlbert’s objection to the inclusion of testimony from Milo.

“Procedurally, this whole thing has been a mess, with paper flying back and forth from all sides,” he said. “No matter what, we’ll be there.”

New-car smell

Erzinger's attorney says out-gassing from the new car's upholstery may be a contributing factor.

Erzinger, meanwhile, is preparing to mount a vigorous defense in the case, should the court reject the plea agreement on Thursday. Erzinger has consistently maintained that he was unaware he had struck anyone after drifting off the road and hitting a culvert.

In documents filed with the court, Erzinger claimed that he has suffered from sleep apnea and may have momentarily lost consciousness while driving his car that day. Upon realizing that he had drifted off the road, Erzinger said, he brought his vehicle under control, returned to the pavement and then continued on until he discovered that his car had been damaged, at which point he pulled into a parking lot to contact Mercedes for repairs.

Erzinger began receiving treatment for sleep apnea in November.

The defense has also recently enlisted the services of an accident reconstruction specialist, John Kozoil, who suggested that potentially dangerous fumes from Erzinger’s recently purchased vehicle – a phenomenon often referred to as “new-car smell” – may have contributed to the accident.

“Harmful and noxious gases emitted from the upholstery can infiltrate the driver’s compartment and potentially alter the driver,” Kozoil wrote in documents submitted to the court.

Haddon contends that this shows Erzinger was trying to hide his car.

Tegtmeier, however, conceded that while such outgassing might have been a contributing factor, there is “no scientific basis” for a claim that a driver might lose consciousness due to the fumes associated with new-car smell.

Haddon’s characterization of the claim was less sympathetic.

“I don’t think that this kind of ‘Twinkie defense‘ — true or not — is any excuse to leave the scene of an accident and then hide your car behind an abandoned Pizza Hut,” he said.

Asked whether it was fair to suggest that Erzinger was actually attempting to hide from public view when he pulled into the parking lot, Haddon said “the pictures pretty much show that to be the case.”

Inconsistent information

Police found Erzinger and his car behind the abandoned Pizza Hut.

When Erzinger was first approached by Avon police in the Pizza Hut parking lot, he was on the phone with Mercedes and was placing damaged portions of his car into the trunk.

He told police that he had, indeed, been involved in accident, but determined that he had not hit a car or individual and then went on his way. According to one of the officers, Erzinger then claimed to have called 911 to report the accident and said he was told that since there were no other parties involved that he should merely call a tow truck if his vehicle had suffered serious damages.

According to an affidavit submitted by one of the officers, “Vail dispatch does not have a record of this call.”

Police then arrested Erzinger on the grounds that there was probable cause for a felony charge of leaving the scene of an accident involving serious bodily injury.

An overview of the accident scene.Haddon contends that Erzinger would have had a clear view of things from his interior rear view mirror as he was leaving the scene.Erzinger’s attorney says out-gassing from the new car’s upholstery may be a contributing factor.Graphic showing the path of Erzinger’s car.Police begin investigation at the scene.A police photo of Erzinger’s car behind the Pizza Hut.A police photo of Erzinger’s car behind the Pizza Hut.Police believe that Erzinger’s mirror was damaged by the impact with Milo.Erzinger’s damaged driver’s side mirrorA portion of Erzinger’s rear bumper.Milo’s bike.Emergency room staff attend to Milo’s injuries.Milo arrives in the ER.Steven Milo’s injuriesSteven Milo’s injuriesSteven Milo’s injuriesSteven Milo’s injuriesSteven Milo’s injuriesSteven Milo’s injuriesErzinger’s route to the Pizza Hut. Haddon contends this indicates Erzinger’s attempt to hide his car from view.Police found Erzinger and his car behind the abandoned Pizza Hut.

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